Case No. VFA-0739

May 8, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Qwest/GSD

Date of Filing: April 19, 2002

Case Number: VFA-0739

On April 19, 2002, the Government Systems Division of Qwest Communications International Inc. (Qwest) filed an Appeal from a final determination that the Albuquerque Operations Office (DOE/AL) of the Department of Energy (DOE) issued on March 26, 2002. The determination was in response to a request for information submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In its determination, DOE/AL informed Qwest that it located no agency records responsive to its request, and that the documents requested were procurement records of a DOE contractor that are not subject to release under the FOIA or DOE regulations.

I. Background

On March 14, 2002, Qwest requested from DOE/AL a copy of "Contract AU06975," a document containing "terms and conditions for Verizon Corporation's performance of Sandia National Laboratories Operation and Maintenance (O&M) requirements." Letter from William McAndrew, Qwest, to DOE/AL (March 14, 2002); Appeal at 1. In its March 26, 2002 response to the request, DOE/AL informed Qwest that the

Office of Kirtland Site Operations (OKSO) (formerly the Kirtland Area Office), [which has] oversight responsibility for the Sandia National Laboratories (SNL), searched for responsive documents but could not locate any. The OKSO further stated that . . . the records you are requesting are procurement records of the Sandia Corporation, and are, therefore, not "agency records" subject to the provisions of the FOIA.

Letter from Carolyn A. Becknell, DOE/AL, to William McAndrew, Qwest (March 26, 2002) at 1. DOE/AL also found that "the contract between the DOE and the Sandia Corporation, clearly defines the records that you have requested as belonging to [Sandia] and not the DOE." Id. In its Appeal, Qwest states,

Although Sandia is performing an inherent Government/DOE contracting function wherein copies of contracts are routinely releasable, they have refused our request since they are a privately owned contractor. We do not believe that the intent of the FOIA, as well as U.S. Government policy of full disclosure, should allow this administrative manipulation.

Appeal at 1.

II. Analysis

The statutory language of the FOIA does not define "agency records," but merely lists examples of the types of information agencies must make available to the public. See 5 U.S.C. § 552(a). In interpreting this phrase, we have applied a two-step analysis the courts have fashioned for determining whether documents created by non-federal organizations, such as Sandia Corporation, are subject to the FOIA. See, e.g., Los Alamos Study Group, 26 DOE ¶ 80,212 (1997) (LASG). That analysis involves a determination (i) whether the organization is an "agency" for purposes of the FOIA and, if not, (ii) whether the requested material is nonetheless an "agency record." See LASG, 26 DOE at 80,841.

The FOIA defines the term "agency" to include any "executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch . . . , or any independent regulatory agency." 5 U.S.C. § 552(f). The Supreme Court has held that an entity will not be considered a federal agency for purposes of the FOIA unless its operations are subject to "extensive, detailed, and virtually day-to-day supervision." Forsham v. Harris, 445 U.S. 169, 180 & n.11 (1980) (citing United States v. Orleans, 425 U.S. 807 (1976)). In the present case, the entity in possession of the requested contract is Sandia Corporation. Although Sandia Corporation is contracted by the DOE to operate the Sandia National Laboratories, the DOE does not supervise the contractor’s day-to-day operations. We therefore conclude that Sandia Corporation is not an "agency" subject to the FOIA.

Although Sandia Corporation is not an agency for the purposes of the FOIA, their records responsive to the present request could become "agency records" if DOE obtained them and they were within the DOE's control at the time Qwest made its FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989) (Tax Analysts). However, as discussed above, the DOE office responsible for oversight of Sandia National Laboratories searched for the contract at issue at the time of the request, and it did not have a copy. Based on these facts, the document does not qualify as an "agency record" under the test set forth by the federal courts. See Tax Analysts, 492 U.S. at 145-46.

Even if contractor-acquired or contractor-generated records fail to qualify as "agency records," they may still be subject to release if the contract between the DOE and that contractor provides that the records in question are the property of the agency. The DOE regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, DOE will make available to the public such records that are in the possession of the Government or the contractor, unless the records are exempt from public disclosure under" the FOIA. 10 C.F.R. § 1004.3(e)(1).

The relevant provisions in the contract between DOE and Sandia are as follows:

126. DEAR 970.5204-79 ACCESS TO AND OWNERSHIP OF RECORDS (JUN 1997) (See Clause H-18)

(a) Government-owned records. Except as provided in paragraph (b) of this clause, all records acquired or generated by the contractor in its performance of this Contract shall be the property of the Government and shall be delivered to the Government or otherwise disposed of by the contractor either as the Contracting Officer may from time to time direct during the process of the work or, in any event, as the Contracting Officer shall direct upon completion or termination of the contract.

(b) Contractor-owned records. The following records are considered the property of the contractor and are not within the scope of paragraph (a) of this clause.

. . . .

(3) Records relating to any procurement action by the contractor, except for records that under 48 CFR (DEAR) 970.5204-9, Accounts, Records, and Inspection, are described as the property of the Government; . . .

Contract No. DE-AC04-94AL85000, Clause I-126.

DOE/AL describes the contract sought by Qwest as a "procurement record." Letter from Carolyn A. Becknell, DOE/AL, to William McAndrew, Qwest (March 26, 2002) at 1. We agree with this characterization, which is not disputed by the Appellant. As such, because the contract between DOE and Sandia Corporation provides that records "relating to any procurement action by the contractor" are not property of the Government, such records are not subject to release under DOE regulations.(1)

In sum, because we find that the document sought by Qwest is neither an agency record subject to the FOIA, nor a government-owned record subject to release under DOE regulations, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Qwest/GSD on April 19, 2002, Case No. VFA-0739, is hereby denied.

(2) This is a final Order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provision of 5 U.S. C. §552 (a)(4)(B). Judicial review may be sought in the district where the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 8, 2002

(1) The exception to the contractor's ownership of procurement records, found in 48 CFR (DEAR) 970.5204-9, Accounts, Records, and Inspection (Contract Clause I-74), encompasses "all financial and cost reports, books of account and supporting documents, system files, data bases, and other data evidencing costs allowable, collections accruing to the contractor in connection with the work under this contract, other applicable credits, and fee accruals under this contract, . . ." We do not find that the contract requested by the Appellant would fall within this exception.